Exclude the Blood Test for Violation of 4th Amendment

MOTIONS IN LIMINE:Other Creative Motions

The defendant will move the Court to suppress the blood test results because the warrantless, non-consentual search of defendant’s person and seizure of his blood was unreasonable and violated the Fourth Amendment. The police did not honor the defendant’s chemical test rights pursuant to Vehicle Code §23612(a)(2)(A) which guarantees that the person “has the choice of whether the test shall be of his blood or breath and the officer shall advise the person that he or she has that choice”. The officer, instead, compelled his own preferred blood test. Since the compelled blood test was obtained without a warrant and was obtained without consent, it was unreasonable, and violated the Fourth and Fourteenth Amendments to the U.S. Constitution and Article I, Section 13 of the California Constitution, Nelson v. City of Irvine (1998) 143 F.3d 1196, Ferguson v. City of Charleston, 532 U.S. 67, 121

I. INTRODUCTION

The defendant was pulled over for a minor vehicle code violation and thereafter taken to the Placentia Police Department. He was not offered a choice of blood or breath test. The police officer told him “We’re going to take a blood test from you and we are getting a lady here to do it” or words to that effect. This nice gentleman cooperated fully. However, he was never given a choice of tests nor did he ever consent to the withdrawal of the blood from his body.

The motion to exclude the blood test results is based upon Nelson v. City of Irvine (1998) 143 F.3d 1196, which held that requiring a DUI arrestee to submit to a warrantless test of the officer’s choosing and/or forcing the officer’s preferred blood test violates the Fourth Amendment’s general prohibition against non-consentual, warrantless searches. This prohibition is now even stronger under Ferguson v. City of Charleston, 532 U.S. 67, 121 Sup. Ct. 1281.

II. WHERE POLICE SEARCH OR SEIZE A PERSON AND OBTAIN EVIDENCE WITHOUT A WARRANT THE PEOPLE HAVE THE BURDEN, UPON MOTION BY THE DEFENDANT, TO PLEAD THEIR JUSTIFICATION FOR THE WARRANTLESS SEARCH AND SEIZURE. THE PLEADING MUST BE SERVED WITH SUFFICIENT TIME BEFORE THE HEARING TO PERMIT THE DEFENDANT TO RESPOND.

The police seized defendant’s blood without consent and without a warrant. In People v. Williams, (1999) 20 Cal.4th 119, 130 [Williams II]: the California Supreme Court held that all the defense has to do in a 1538.5 motion to raise the issue of the unconstitutionality of a search is “simply assert the absence of a warrant and make a prima facie case to support that assertion.”
Consequently, the burden of proof to justify the warrantless search is on the prosecution. The Williams Court stated “defendants need not guess what justifications” the prosecution will argue. Instead, defendant’s can wait for the prosecution to present a justification. Moreover, in specifying the inadequacy of the prosecution’s justification, defendants do not have to help the prosecution to make its case. Attached hereto is a Declaration of Jon Bryant Artz which makes a prima facie case that there was no arrest and/or search warrant in this case.

It is a First Principle of criminal advocacy that the People have the burden to justify a warrantless search and seizure, Coolidge v. New Hampshire (1971) 403 U.S. 443, 455, People v. Williams (1988) 45 Cal.3d 1268, 1297 because WARRANTLESS searches and seizure are PRESUMPTIVELY ILLEGAL. Katz v. United States (1967) 389 U.S. 347, 357, People v. Laiwa (1983) 34 Cal.3d 711, 725. They are “per se unreasonable,” People v. Osband (1996) 13 Cal.4th 622, 673 [internal cite and quotation marks omitted], unless the People can show the narrow exception which applies thereto. Welsh v. Wisconsin (1984) 466 U.S. 740, 749-750.1

In service to that allocation of burdens, a procedural device has been recognized: the major pleading effort, upon motion by the defendant, is initially on the People to advance its justification for a warrantless liberty infringement. Wilder (1979) 96 Cal.App.3d 90 @96-97, accord People v. Palmquist (1981) 123 Cal.App.3d 1, 12, fn. 7, People v. Sedillo (1982) 135 Cal.App.3d 616, 619 623, People v. Britton (1984) 156 Cal.App.3d 689, 699, hearing denied. The defense requests full compliance with the law which requires that the prosecution file a pleading stating the facts and justification for the search and seizure.

Naturally, “[if the prosecution fails to carry its burden [of justification for the warrantless infringement], the defendant need do nothing more to be entitled to suppression of the primary evidence.” People v. Williams, (1986) 45 Cal.3d 1268 @ 1300 [emphasis added].

So, even though the moving party has the initial responsibility of raising the suppression issue, “when [he so raises], he makes ‘a prima facie case’ when he establishes that the arrest or search was made without a warrant and… “the burden then rests upon the prosecution to show proper justification.’” People v. Manning (1973) 33 Cal.App.3d 586, 600; see also People v. Villalva (1973) 33 Cal.App.3d 362, 366 and People v. Prewitt (1959) 52 Cal.2d 330, 335. [The bizarre rumor circulating locally that Wilder has been “overruled” is not based on any authority. Williams, supra 45 Cal.3d. @1304, fn.3.]

It has long been understood that “[p]ower is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a[n] [independent!] magistrate to pass on the desires of the police before they violate [one’s] privacy…” McDonald v. United States (1948) 335 U.S. 451, 456.

The People’s burden has to be carried, of course, with “evidence” (Penal Code section 1538.5(c)), which has the same meaning for suppression motions as for trials. Hewitt v. Superior Court (1970) 5 Cal.App.3d 923, 927.2

III. CONSTITUTIONAL AND STATUTORY GROUNDS

This motion is based on violation of defendant’s rights as guaranteed by the Fourth, Fifth and Fourteenth Amendments to the United States Constitution, and Art. I, §§ One, Ten and Thirteen of the California constitution.

FOURTH AMENDMENT:
The Fourth Amendment of the Constitution of the United States (adopted nearly intact by the Constitution of California, Article I, Section 13, provides):“The right of the People to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by Oath or affirmation, particularly describing the place to be searched and the persons or things to be seized.”

“For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” (Katz v. United States 389 U.S. 347,
351-352 (1967) [ internal citations omitted].)

“… searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment –subject only to a few specifically established and well-delineated exceptions.” (Katz v. United States 389 U.S. 347, 357 fns. omitted (1967).)

“It is not disputed that the administration of a breath test is a search within the meaning of the Fourth Amendment and therefore subject to the requirements of that amendment.” (Emphasis added.) (Burnett v. Municipality of Anchorage 806 F.2d 1447, 1449 (9th Cir. 1986). [Citation omitted.].)

“To pass constitutional muster under the Fourth Amendment a search must be reasonable. Generally, a search must also be supported by probable cause, and must be backed up by a warrant, or the circumstances must fit an exception to the warrant requirement.” (Nelson v. City of Irvine 143 F.3d 1196, 1200 (9th Cir. 1998) [internal citations omitted].)

“In considering [warrant requirement exceptions], we must not lose sight of the Fourth Amendment’s fundamental guarantee as stated by Mr. Justice Bradley’s admonition in his opinion for the Court almost a century ago in Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746:‘It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.’” (Coolidge v. New Hampshire 403 U.S. 443, 453-454 (1971) reh. den’d [footnote omitted, emphasis added].)

THE EXCLUSIONARY RULE:
Evidence obtained by law enforcement officers in violation of the Fourth Amendment is inadmissible in criminal prosecutions. Weeks v. United States (1914) 232 U.S. 383; Mapp v. Ohio(1961) 367 U.S. 643.The Fourth Amendment is applicable to the states by virtue of the Fourteenth Amendment to the United States Constitution. Mapp v. Ohio, supra, 367 U.S. at 654. California must apply the federal Exclusionary Rule to illegally obtained evidence in criminal proceedings. In re Lance W., supra, 882-883.

TANGIBLE AND INTANGIBLE EVIDENCE AND POTENTIAL THIRD PARTY TESTIMONY ARISING OUT OF
AN UNLAWFUL SEARCH OR SEIZURE ARE INADMISSIBLE AGAINST AN ACCUSED IN A CRIMINAL PROCEEDING.
Evidence obtained as a direct result of the detention, arrest, search, seizure, or entry violative of the Fourth Amendment is inadmissible. The Exclusionary Rule applies to intangible evidence as well as tangible evidence. The Exclusionary Rule applies not only to objects seized unlawfully, but to the “fruits” of that illegality as well. Wong Sun v. United States (1963) 371 U.S. 471, 83 S.Ct. 407.Testimonial evidence is intangible evidence within the meaning of Penal Code section 1538.5 and may be suppressed if it is the product of an illegal search even though no tangible evidence was seized. Rockridge v. Superior Court (1970) 3 Cal.3d 166, 169; Kirby v. Superior Court(1970) 8 Cal.App.3d 591.It is to be recalled that “a search is not to be made legal by what it turns up. In law it is good or bad when it starts,” wrote our insightful prosecutor at Nuremberg, Justice Jackson, “and does not change character from its success.” United States v. Di Re (1947) 332 U.S. 581, 595. Justice Jackson, recently dealing with the history of unprincipled, “emergency”-based jackbootism at Nuremberg, had this conduct in mind with those utterances.

PENAL CODE SECTION 1538.5 IS THE PROPER VEHICLE TO SUPPRESS EVIDENCE.
Penal Code section 1538.5 is the proper vehicle for challenging the legality of a search and seizure pursuant to a search warrant. Section 1538.5 is utilized to suppress evidence which is the subject of the search and seizure or was the fruit of any search and seizure. In re Lance W. (1984) 37 Cal.3d 873, 896; Penal Code section 1538.5(a).

IV. THE POLICE OFFICER DID NOT GIVE DEFENDANT A CHOICE OF BREATH OR BLOOD TEST

After Mr. _____________ was arrested by the police, he was taken to the police department. He was told that he would “have to take a blood test.” (See his attached Declaration.) Thereafter, a nurse arrived and took his blood from him. As demonstrated in the attached declaration of defendant incorporated herein referenced Mr. _____________ was never advised or otherwise informed that he had the right to a choice between whether to take a blood or a breath test to satisfy his obligation to take a chemical test. Furthermore, if given a choice, he would in fact have taken a breath test.

Vehicle Code §23612(2)(A) provides that “if the person is lawfully arrested for driving under the influence of an alcohol beverage, the person has the choice of whether the test shall be of his or her blood or breath and the officer shall advise the person that he or she has that choice…”

Mr. _____________ was deprived of the option to take a breath test and was coerced into submitting to a blood test. Requiring the DUI arrestee to submit to a warrantless search of the officer’s preferred, more invasive blood test violates the Fourth Amendment’s warrant requirement.

V. NELSON v. CITY OF IRVINE STATES THAT REQUIRING A DUI ARRESTEE SUBMIT TO A WARRANTLESS TEST OF BLOOD AND NOT ALLOWING THE CITIZEN TO A CHOICE OF BREATH IS UNREASONABLE UNDER THE FOURTH AMENDMENT

In Nelson v. City of Irvine (1998) 143 F.3d 1196 the court noted that the defendant’s therein were “deprived of the option to take breath or urine tests and were coerced into submitting to a blood test.” The Court held that arrestees who were forced to undergo a certain test preferred by the police (in Nelson, the more invasive blood test as in our case), had a Fourth Amendment claim.

The Court further held that requiring the DUI arrestee to submit to a warrantless test of the officers choosing, after the arrestee has consented to one of the available test as provided by statute, violates the Fourth Amendment’s warrant requirement. Lastly the court held that arrestees who consented to a certain test did not impliedly consent to a blood test.

Facts of the Nelson Case:
There were numerous arrestees who filed a class action. Arrestee Nelson was not advised of his choice of a chemical test and the officer simply asked him if he “had a problem with taking a blood test.” He subsequently alleged he would have selected a breath or urine test if so advised as does this moving party.Mr. Fernandez was told of his three options, took a preliminary breath test, was thereafter informed that the police were “going to get a blood sample”. He likewise alleged that he would have selected a breath or urine test.Arrestee Tyler was not informed that he had choice of tests and was told that if he did not cooperate in the taking of a blood test he would be held in jail over the week-end.Arrestee Chancellor was told that if he submitted to a blood test he would be released in four hours, but if he selected a urine test he would not be released for at least 17 hours. He submitted to a blood test.As the court noted, a search must be reasonable, citing Ohio v. Robinette,(1996) 519 U.S. 33, 117 S.Ct. 417, 421, 136 L.Ed.2d 347. (id. at p.1200.)The court noted that the issue is whether the blood tests were reasonable and whether “exigent circumstances” or some other exception to the warrant requirement existed to excuse the police from obtaining warrants.

Holding of the Nelson Case:
The Nelson Court, held that in California (at that time) a chemical analysis of blood, breath, or urine is provided for by statute, V.C. § 23155(a), and therefore breath and urine tests are equally effective as a blood test. (Nelson v. City of Irvine, id., at p.1201). Furthermore, the Nelson Court noted that “California law requires that blood and urine tests be available: a DUI arrestee has the choice of whether the test shall be of his… blood, breath, urine, and the Officer shall advise the person that he or she has that choice.” (Nelson v. City of Irvine, id., at p.1201).The Nelson Court held that when a DUI arrestee consents to undergo a given test, e.g. breath or urine, “the government has available to it an effective alternative to the test preferred by the police. The Nelson Court looked at prior cases and, quoting from Schmerber v. California (1966) 384 U.S. 757 at 760, which approved the withdrawal of blood without a warrant to determine the alcohol level, noted it “would be a different case” if the police had refused to respect the citizen’s choice… “ to undergo a different form of testing (e.g. asking for urine instead of blood).The Nelson Court noted that Judge Kozinski in Hammer v. Gross(1991) 932 F.2d 842 at 851 (9th Cir. en banc) reasoned that it is unreasonable when a subject agrees to submit to an alternative alcohol test and yet is forced to submit to the extraction of his blood:“If an alternative test is readily available and a suspect requests it, police officers may not arbitrarily refuse to administer it simply because the suspect did not have the presence of mind to make a decision more promptly or because he changed his mind. The standard, as always, under the Fourth Amendment, is reasonableness. Defendants (the police) have offered no explanation for the officer’s refusal to comply with (the arrestee)’s request.” (Nelson v. City of Irvine, id.,at p.1202).The Hammer Court noted that the need for the blood alcohol test was critical but because the arrestee had consented to one of the tests as provided by law, “the government had no need for the… test preferred by the police.” As stated by Judge Kozinski, “If the suspect requests a breath or urine test and it will do the job just as well, it must be used in lieu of a blood test even where the suspected crime is murder in the first degree.” (Nelson v. City of Irvine, id,at p.1202.)If a suspect is not advised of his choice of tests, it is unreasonable and in violation of the Fourth Amendment for police officers to insist upon their preferred blood test.The Nelson Court rejected numerous arguments of the government, holding“When an arrestee requests but is denied the choice of an available breath or urine test, the exigency used to justify the warrantless blood test continues only because of the City’s failure to perform the requested alternative test. Whenever a DUI arrestee consents to a breath or urine test, and such test are available, the administration of either the breath or urine test would preserve the evidence and end the exigency. In such case, because the sole justification advanced to excuse the officers from obtaining a warrant disappeared when the exigency ended, the blood tests were not only unnecessary and unreasonable, but violated the Fourth Amendment’s warrant requirement.” (Nelson v. City of Irvine, id, at p.1205.)

VI. THE UNITED STATES SUPREME COURT HAS RECENTLY CONFIRMED “THE GENERAL RULE THAT AN OFFICIAL NON-CONSENTUAL SEARCH IS UNCONSTITUTIONAL IF NOT AUTHORIZED BY A VALID WARRANT”

In Ferguson v. City of Charleston, 532 U.S. 67, 121 Supreme Court 1281, the court reviewed whether a state hospital’s performance of a diagnostic test to obtain evidence of a patient’s criminal conduct for law enforcement purposes constituted an unreasonable search if the patient did not knowingly and voluntarily consent to the procedure.

Under the facts of Ferguson, patients provided urine tests to a state hospital which used drug screens on the samples under the procedures implemented by the hospital and the police. Arguably, the patient was on notice that the hospital would be using the urine test to determine drug use and would thereafter submit positive results to the police for prosecution. In our case, the police officer misinformed the citizen, informing the driver that the results of the PAS test would be used for a limited purpose, i.e. to determine reasonable cause. Furthermore, the officer expressly told the defendant that consent to the PAS test would not satisfy the requirement of providing a sample of blood, breath, or urine to determine actual alcohol content if arrested, implying the PAS is not a test to determine blood alcohol levels.

The court stated that while the ultimate goal of the program was laudable, the “immediate objective of the searches was to generate evidence for law enforcement purposes in order to reach that goal.” (Ferguson v. Charleston, id. at 2842.) The court held that Fourth Amendment’s general prohibition against non-consentual, warrantless searches” applied (Ferguson, i.d. at 2842).

In that case the prosecution argued the evidence of drug use was admissible because the search was not done by the police. In our case, of course, the search of defendant’s body for evidence of his blood alcohol content by the PAS device was done directly by the police and therefore is a stronger case for application of the Fourth Amendment’s prohibition against warrantless searches.

VII. THE U.S. SUPREME COURT RULED (FOR THE FIRST TIME) THAT A PERSON CANNOT LEGALLY GIVE CONSENT UNLESS THEY ARE FULLY INFORMED ABOUT THEIR CONSTITUTIONAL RIGHTS AS STANDARDS OF “KNOWING WAIVER” REQUIRE

The U.S. Supreme Court reasoned that while it is true that citizens “may have a duty to provide the police with evidence of criminal conduct that they inadvertently acquire in the course of routine treatment, when they undertake to obtain such evidence from their patients for the specific purpose of incriminating those patients, they have a special obligation to make sure that the patients are fully informed about their constitutional rights, as standards of knowing waiver require, c.f. Mirandan v. Arizona, 384 U.S. 436 (1966).” (Emp. added) Ferguson, id. at 2842. All the more does this requirement of a knowing waiver apply when the police obtain the evidence. The prosecution cannot argue that there was a “knowing waiver” or consent to the PAS search.

VIII. THE POLICE VIOLATED MR. _____________’S DUE PROCESS RIGHT AND LIBERTY INTEREST

Additionally, defendant contends that the implied consent law of California creates a liberty interest that is entitled to the procedural due process protection of the Fourteenth Amendment and that the policy of the arresting officer deprives him of his right to due process and is directly contrary to California statutes.

The Nelson Court also noted, that since V.C. §23157(a)(2)(A) [now 23612(a)(2)(A)] permits DUI arrestees a choice of tests, and the California law has been construed to provide that an arrestee in entitled to just one test, (Kessler v. DMV (1969) 1 Cal.3d 74, 81 Cal.Rptr. 348), and therefore only consent to the selected test need be implied under the statute. (Nelson v. City of Irvine, id, at p.1207.)

IX. IT IS UNREASONABLE TO EXTRACT BLOOD UNDER THE CONDITIONS OF THIS CASE

The U.S. Supreme Court stated in Schmerber that the questions “are whether the police were justified in requiring petitioner to submit to the blood test and whether the means and procedures employed in taking his blood respected relevant Fourth Amendment standard of reasonableness.” Schmerber, Id. at 918.

In Schmerber, the defendant was involved in an accident while driving an automobile, was in a hospital, he and his companion were injured, and as a result, the police had authority to arrest for a felony and the driver refused to consent to a test. Schmerber, Id. at 912. The U.S. Supreme Court stated that it reached its judgment “only on the facts of the present record,” and that its holding in no way indicates that the Constitution “permits… intrusions under other conditions.” Schmerber, Id. at 772.

The U.S. Supreme Court stated “it would be a different case if the police… refused to respect a reasonable request to undergo a different form of testing…” Schmerber, Id. at 760 n.4. In the present case, the police conduct is even more unreasonable because the police violated their mandatory duty under V.C. §23612(a)(2)(A): “shall advise” of “choice of blood or breath.”

The court noted that “the procedure involves virtually no risk…” Schmerber, Id. at 920. Since that decision (1996), society has become aware of AIDS and other infectious diseases that can be transmitted by a needle. The “no risk” factor is no longer true.

Factors relative to the intrusiveness of a blood test must now consider that “special precautions should be employed in procedures involving exposure to bodily fluids.”

Nelson, Id. at 1201. As the footnote to this court states:

“See, e.g., Centers for Disease Control, U.S. Dep’t of Health and Human Services, Guidelines for Prevention of Transmission of Human Immunodeficiency Virus and Hepatis B Virus to Health-Care and Public-Safety Workers, 17-18 (1989) (“Blood from all individuals should be considered infective,” and the “[u]se of needles and syringes should be limited to situations in which there is no alternative”); Centers for Disease Control and Prevention, U.S. Dep’t of Health and Human Services, Update: Provisional Public Health Service Recommendations for Chemoprophylaxis After Occupation Exposure to HIV, 276 JAMA 90 (1996) ( “preventing blood exposures is the primary means of preventing occupationally acquired human immunodeficiency virus (HIV) infection”); Ronald L. Nichol, Percutaneous Injuries During Operation: Who is at Risk For What?, 267 JAMA 2938 (1992) (“[N]eedle stick and other sharp injuries . . . account for greater than 80% of occupationally acquired cases of HIV infection in [health care workers]”).”

In Schmerber:

“Petitioner is not one of the few who grounds of fear, concern for health, or religious scruple might prefer some other means of testing, such as the “breathalyzer” test petitioner refused, see n.9, supra. We need not decide whether such wishes would have to be respected.” Schmerber, Id. at 920.

Also this citizen preferred a breath test and did not refuse a “breathalyzer” test. Additionally, Mr. Moriarty had a concern for his health and did not want a blood test to be performed at the police station. (See Declaration of Moriarty attached to original Motion to Suppress.)

The Schmerber court stated that “… the test was performed in reasonable manner. Petitioner’s blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving the use a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment – for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.” Schmerber, Id. at 920.

The court held that:

“the present record shows no violation of petitioner’s right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions or intrusions under other conditions.” Schmerber, Id. at 920.

In this case, there was a poking of the skin of the person under “other conditions,” e.g. there was no refusal to take a breath test, the primary factor that created the emergency and need for the compelled blood test. Additionally, the police did not abide by their duty to inform the citizen of his statutory right of a choice of tests. He was so advised in Schmerber. In our case, the blood test was administered, not by a physician, but by “police in the privacy of the stationhouse.”

Society is presently aware of far more risk of needles, including the risk of infection. The blood test was not taken in the hospital by a physician but was done in the police station. Because the compulsory extraction of blood was taken under these “other conditions,” it was unreasonable.

As stated in Ferguson, supra, at 2842, when seeking evidence from citizens, the authorities “have a special obligation to make sure that the (citizens) are fully informed about their Constitutional rights, as standards of knowing waiver require. Cf. Miranda v. Arizona, 384 U.S. 436 (1966).” In other words, the U.S. Supreme Court in its most recent pronouncement stated that when the State is obtaining incriminating evidence, the person must be “fully informed” regarding their “Constitutional rights” and analogized it to the standards of “knowing waiver.” It is hornbook Constitutional law that a knowing waiver must be express and voluntary and that the law presumes
against waiver of fundamental rights.

Since the only exigency was the need to secure evidence of blood alcohol content which would have been satisfied by the officers following their duty to inform the citizen of right to a choice of tests, and the citizen would have chosen breath, and such a breath test is safer and less intrusive than a blood test, compelling the blood test without a warrant and without consent is unreasonable.

X. THE JUSTIFICATION FOR THE SEIZURE OF THE BLOOD, EXIGENCY, WAS CREATED BY THE POLICE CONDUCT AND THEREFORE THE EXTRACTION OF BLOOD, WITHOUT A WARRANT AND WITHOUT CONSENT WAS UNREASONABLE.

As stated in Schmerber, “in light of all these considerations, and of the fact that “the integrity of an individual’s person is a cherished value of society,” the reasonableness of the search must be considered. Schmerber, Id. 772, citing Hammer at 846.

The question in this case, given that the police compelled and extracted blood, without warrant, and without consent, is whether the officer’s actions are “objectively reasonable” in light of the facts and circumstances confronting them. Graham v. Conner (1989) 490 U.S. 386, 109 S. Ct. 1865, 1872, 104 L. Ed. 2d 443 (1989).n1. Such a test balances the intrusion on the individual’
Fourth Amendment right against the governmental interests at stake. Graham, Id. at 1871.

The Nelson Court rejected numerous arguments of the government, holding:

“When an arrestee requests but is denied the choice of an available breath or urine test, the exigency used to justify the warrantlessblood test continues only because of the City’s failure to perform the requested alternative test. Whenever a DUI arrestee consents to a breath or urine test, and such test are available, the administration of either the breath or urine test would preserve the evidence and end the exigency. In such case, because the sole justification advanced to excuse the officers from obtaining a warrant disappeared when the exigency ended, the blood tests were not only unnecessary and unreasonable, but violated the Fourth Amendment’s warrant requirement.” Nelson, Id. at 1205.

XI. MR. MORIARTY HAD A LIBERTY INTEREST IN A CHOICE OF TESTS AND THE POLICE VIOLATED DUE PROCESS

Additionally, defendant contends that the implied consent law of California creates a liberty interest that is entitled to the procedural due process protection of the Fourteenth Amendment and that the policy of the arresting officer deprives him of his right to due process and is directly contrary to California statutes.

The Nelson Court also noted, that since V.C. §23157(a)(2)(A) [now 23612(a)(2)(A)] permits DUI arrestees a choice of tests. The California law has been construed to provide that an arrestee in entitled to just one test, Kessler v. DMV (1969) 1 Cal.3d 74, 81 Cal.Rptr. 348, and therefore only consent to the selected test need be implied under the statute. Nelson, Id. at1207.

XII. SYSTEMATIC FAILURE VIOLATES EQUAL PROTECTION RIGHTS

A systematic failure to advise of the choice of tests violates Federal Equal Protection Rights. The court held In re Garinger (1987) 188 Cal.App.3 1149 that proof of a systematic failure to give the advice required by V.C. §13353 (now V.C. §23612) might violate federal equal protection rights and the breath test should be suppressed as a remedy for violation of said constitutional requirements.

XIII. CONCLUSION

The policy of the arresting officer to compel a blood sample, preferred by the police, without advising the citizen of his statutory right to a choice of tests, violates the Fourth Amendment. It is unreasonable. Furthermore, the defendant’s right to due process and his liberty interests were violated. The blood test results must be suppressed as a result of these constitutional violations.

1 Credit is
given to “Captain Motion” for some of the language of this motion (Michael J. Kennedy,
Public Defender v. Victorville).

2 That is, the law properly understood, there is no “Oh, just to explain why the officer did what he did” nor “for
probable cause purposes’ exceptions to the Evidence Code for these motions. Indeed, the former rationale would invite irrelevant evidence: the “objective rule” is so pronounced that what the cop thought on the subject is flatly irrelevant. People v. Hull (1995) 34 Cal.App.4th 1448, 1455, People v. Limon (1993) 17 Cal.App.4th 524, 538-539, rev. denied, People v. Gonzales (1989) 216 Cal.App.3d 1185, 1190, rev. denied. “Subjective intentions play NO role in ordinary, probable-cause Fourth Amendment analysis.” Whren v. United States (1996) — U.S. —,— [116 S.Ct. 1769, 1774] [emphasis added]. What part of “no” and “role” causes any confusion here?

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